1984 PLP 471 (PLC)

5. As regards the first contention, it would be convenient to refer to Standing Order 12 which reads as follows: "(1) ......... "' (2) ......... ......... (3) The services of a workman shall not be terminated, nor shall a work man be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25‑A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. (4) ......... ......... ......... (5) The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15." The relevant sub‑clause (4) of the Standing Order 15 reads as follows :‑ "No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstance alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquiries before dealing with charges against a workman : Provided that the workman proceeded against may, if he so desired for his ass1stance in the enquiry, nominate any workman employed in that establishment the employer shall allow the workman so nominated to be present in the enquiry to ass1st the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours. Section 2 (c) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, defines the "employer" as follows :‑ "(c) "Employer" means the owner of an industrial commercial estab lishment to which this Ordinance for the time being applies, and includes ; (i) in a factory, any person named under clause (e) of subsection (1) of section 9 of the Factories Act, 1934 (XXV of 1934), as manager of the factory (ii) ...... ............ ............ (iii) ............ .......... On the admitted facts of the case of the parties and as disclosed by the evidence on the record, the respondent establishment is admittedly a factory, and under section 9 (1) (e) of the Factories Act, 1934, before work is begun in any factory after the commencement of the Act, or before work is begun in any seasonal factory in each season, the occupier shall send to the Inspector a written notice containing the name of the person who shall be the manager of the factory for the purposes of the Act. It would, therefore, be clear that in view of the above‑mentioned provisions the employer to institute the enquiries or to grant approval of the dismissal would be either an owner or a manager of the factory named or notified within the meaning of section 9 (1) (d) of the Factories Act, 1934. In the instant case on the basis of the evidence adduced by the parties, the enquiry was admittedly initiated and instituted by a charge‑sheet, dated 29th September, 1981, signed by S. Mohsin Akhtar, Manager Production and the order of dismissal, dated 4th November, 1981, was issued and signed by S. Shahid Naser as Factory Manager. It has been contended on behalf of the appellant that S. Shahid Naser was neither the owner nor was named or notified as Factory Manager and, therefore, he was not legally competent to approve or sign the dismissal order. Similarly, S. Mohsin Akhtar being only a Manager Production, neither owner nor a Factory Manager was legally incompetent to institute enquiry and sign the charge‑sheet, dated 29th September, 1981, by which the enquiry was initiated and instituted. The contention to that effect as would appear from the evidence on the record was raised right up from the initial stage as it was so contended in the grievance notice, in the grievance application as well as in the affidavit filed in evidence of the appellant herself. It has been specifically contended therein that the dismissal order for the reasons above‑mentioned was not passed by the competent authority under the law. In the circumstances, the burden lay on the respondent in view of the mandatory) provisions of Standing Order 15 (4) to prove affirmatively that the dismissal order was passed as well as the enquiry was instituted by the authority legally competent. In that respect the evidence adduced on behalf of the respondent establishment would clearly show that S. Mobsin Akhtar as well as S. Shahid Naser were neither the owner nor the Factory Manager named or notified under the relevant law, respectively. On the contrary the Enquiry Officer, M. Hanif has admitted in very clear terms that he was appointed as an Enquiry Officer by Manager Production. He has further admitted that Mr. M. Ashraf Jalilwala was the Factory Manager in September, 1981, and that S. Shahid Naser was the occupier of the factory. He has further admitted that he had submitted the report of the enquiry in original to the Factory Manager, Mr. M. Ashraf Jalilwala. Laiq Ahmed Khan, Manager Personnel examined on behalf of the respondent has said in very .clear terms that Mr. S. Shahid Naser was notified as an occupier under the Factories Act, 1934. He has further said that he can produce in that respect the documents, dated 14th April, 1981, vide Exh. R‑

2. He has further said that they are half‑yearly returns and not the notifications. According to him there is an endorsement of the Labour Department on it, dated 15th January, 1981 that it had been received. According to him they had received intimation of the Labour Department about the occupier and Factory Manager under the Factories Act and that he can produce such documents. According to him, Mr. M. Shahid Naser has left the job and was not in the factory when be joined in April, 1981. Reference to the documents produced by him and Exh. R‑2 would clearly show that Mr. M. Ashraf Jalilwala had signed the returns as Factory Manager whereas Mr. S. Shahid Naser signed on behalf of the respon dent‑establishment, there is no room for doubt that S. Shahid Naser was the occupier of the Factory Manager. I am at a loss to understand in view of what has been stated above, as to how occupier would include `Factory Manager' when the learned counsel on behalf of the respondent puts forth such an argument. `Occupier' under section 2 (j) of the Factories Act, 1934, means the person who has ultimate control over the affairs of the factory. Under section 9 (3) of the Factories Act, 1934, during any period for which n person has been designated as manager of a factory under this section, or during which the person designated does not manage the factory, any person found acting as manager, or if no such person is found, the Occupier himself, shall be deemed to be the manager of the factory for the purposes of this Act. This does not seem to be the case there as Mr. M. Ashraf Jalilwala was admittedly named as factory manager. Mereover, the Occupier may be an owner, he may be Lessee or even mere Licensee having right to occupy the property and dictate how it is to be managed. Mr. S. Shahid Naser ultim ately left the job as admitted by Laiqat Ahmed. In such a situation he can neither be considered as owner of the property nor a factory manager unless he was deemed to be a factory manager under the provision of section 9(3) o the Factories Act, 1934. It is true that the provisions of Labour Laws should be construed liberally as they have been so enacted to benefit workers anti should be construed in a sense favourable to the interest of the employees, as held by the Supreme Court of Pakistan in Forbes Forbes Campbell & Company Ltd. v. Habibur Rehman (1982 S C M R 651). The intention of the Legislature is clear that anybody considering himself as authority in the establishment cannot institute enquiry proceedings and pass a final order of dismissal. In order to safeguard the interests of the employees, only the authority as contemplated by the mandatory provisions of Standing Order 15 (4), could legally pass such orders. Accordingly, in view of the admitted position as disclosed in the evidence adduced on behalf of the respondent‑establishment itself, neither Mohsin Akhtar nor S. Shahid Naser were either the owner of the establish ment or named or notified as factory manager respectively and thus not employers within the meaning of Standing Order 15(4). Thereafter, neither Mohsin Akhtar was legally competent to initiate the enquiry nor S. Shahid Naser to approve, pass or sign the dismissal order. Accordingly, it is very clear to me that the impugned order of dismissal of the appellant was not passed by the competent authority in law, and therefore, it cannot be legally sustained.

6. In view of my findings above‑mentioned to the effect that the impugned order of dismissal of, the appellant cannot be legally sustained it would be unnecessary and inappropriate to discuss the merits of the case leading to the order of dismissal and give a finding with regard to the second contention.

7. The result is that impugned order passed by the learned Labour Court is set aside and the appellant is re‑instated. The respondent may hold a fresh enquiry within a period of three months in accordance with law. The question of award of back benefits shall depend upon the result of their enquiry. The appeal is allowed accordingly. A. E. Appeal allowed.